The U.S. Supreme
Court has declined to hear a challenge to a Los Angeles ordinance that
generally requires the new owner of a large grocery store to retain the
existing workforce for 90 days.

The California
Grocers Association had filed a petition for writ of certiorari in November,
asking the justices for review of California Grocers Association v. City of
Los Angeles (2011) 52 Cal.4th 177. The high court Monday denied that
petition without comment.

The association
was represented by the Sacramento-based Pacific Legal Foundation, which had
described the law as “a brazen scheme to punish non-union employers.” But the
state Supreme Court upheld the law on July 18, holding 6-1 that it was not
preempted by state statute or by the National Labor Relations Act.

The city
contended that requiring retention of the existing work force guarantees that
employees familiar with procedures for safe handling of food products are on
hand to train their replacements during the transition.

The grocery
operators claimed the law, which was enacted shortly after the announcement
that the Albertsons chain was being sold, was solely enacted as job-protection
measure. They contended that the National Labor Relations Act preempts the
ordinance—which was backed by organized labor and the Los Angeles Alliance for
a New Economy—because it allows unionized stores to negotiate alternative
arrangements through collective bargaining.

Justice Kathryn
M. Werdegar, writing for the state high court, noted that the National Labor
Relations Board has never held that the NLRA preempts this type of ordinance,
even though the question has been raised before several of the board’s
administrative law judge.

The lone
dissenter was Court of Appeal Justice Elizabeth Grimes of this district’s Div.
Eight, sitting on assignment. Grimes said the history and intent of the NLRA
supports preemption.

The law violates
the principle of collective bargaining, Grimes argued, because it requires an
employer to take on “a group of workers that it did not choose” and to grant
them benefits, such as termination for cause only, “to which the new employer
did not agree.”

The ordinance
also directly impacts the bargaining process, the dissenting jurist wrote,
because it may result in the new employer being deemed the successor to the
former one, obligating it to bargain with the incumbent union.

Deputy
City Attorney Gerald M. Sato was the city’s principal attorney on the case.